sustained EB-2 NIW Case: Biological Research

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preventcleady cT~,w~ted
invasionofpersooalpnvacy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S.Citizenship
and Immigration
Services
FILE:
INRE: Petitioner:
Beneficiary:
Office: NEBRASKA SERVICE CENTER Date: DEC 0 4 ZItJ6
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration
and Nationality Act, 8 U.S.C. § 1153(b)(2)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
~~
/-Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be
sustained and the petition will be approved.
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act
(the Act), 8 U.S.C. § 1153(b)(2), as an alien of exceptional ability or a member of the professions
holding an advanced degree. The petitioner seeks employment as a research scientist. The petitioner
asserts that an exemption from the requirement of a job offer, and thus of an alien employment
certification, is in the national interest of the United States. The director found that the petitioner
qualifies for classification as a member of the professions holding an advanced degree but that the
petitioner had not established that an exemption from the requirement of a job offer would be in the
national interest ofthe United States.
On appeal, counsel submits a brief and additional evidence. For the reasons discussed below, we find
that the record, including the new letters submitted on appeal, adequately demonstrates the petitioner's
influence beyond his colleagues such that a waiver of the job offer requirement can be considered in the
national interest.
Section 203(b) of the Act states in pertinent part that:
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of
Exceptional Ability. --
(A) In General. -- Visas shall be made available ... to qualified immigrants who are
members of the professions holding advanced degrees or their equivalent or who
because of their exceptional ability in the sciences, arts, or business, will substantially
benefit prospectively the national economy, cultural or educational interests, or welfare
of the United States, and whose services in the sciences, arts, professions, or business
are sought by an employer in the United States.
(B) Waiver of Job Offer.
(i) ... the Attorney General may, when the Attorney General deems it to
be in the national interest, waive the requirement of subparagraph (A)
that an alien's services in the sciences, arts, professions, or business be
sought by an employer in the United States.
The petitioner holds a Ph.D. from the University of Madras. The petitioner's occupation falls within
the pertinent regulatory definition of a profession. The petitioner thus qualifies as a member of the
professions holding an advanced degree. The remaining issue is whether the petitioner has established
that a waiver of the job offer requirement, and thus an alien employment certification, is in the national
interest.
Neither the statute nor pertinent regulations define the term "national interest." Additionally, Congress
did not provide a specific definition of "in the national interest." The Committee on the Judiciary
merely noted in its report to the Senate that the committee had "focused on national interest by
increasing the number and proportion of visas for immigrants who would benefit the United States
economically and otherwise.... " S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989).
Supplementary information to the regulations implementing the Immigration Act of 1990 (lMMACT),
published at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states:
The Service believes it appropriate to leave the application of this test as flexible as
possible, although clearly an alien seeking to meet the [national interest] standard must
make a showing significantly above that necessary to prove the "prospective national
benefit" [required of aliens seeking to qualify as "exceptional."] The burden will rest
with the alien to establish that exemption from, or waiver of, the job offer will be in the
national interest. Each case is to be judged on its own merits.
Matter of New York State Dep't. of Transp., 22 I&N Dec. 215 (Comm. 1998), has set forth several
factors which must be considered when evaluating a request for a national interest waiver. First, it must
be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must be
shown that the proposed benefit will be national in scope. Finally, the petitioner seeking the waiver
must establish that the alien will serve the national interest to a substantially greater degree than would
an available U.S. worker having the same minimum qualifications.
It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly
must be established that the alien's past record justifies projections of future benefit to the national
interest. The petitioner's subjective assurance that the alien will, in the future, serve the national
interest cannot suffice to establish prospective national benefit. The inclusion of the term "prospective"
is used here to require future contributions by the alien, rather than to facilitate the entry of an alien
with no demonstrable prior achievements, and whose benefit to the national interest would thus be
entirely speculative.
We concur with the director that the petitioner works in an area of intrinsic merit, biological
research, and that the proposed benefits of his work, improved understanding of messenger RNA
(mRNA) turnover mechanisms, would be national in scope. It remains, then, to determine whether
the petitioner will benefit the national interest to a greater extent than an available U.S. worker with
the same minimum qualifications.
Eligibility for the waiver must rest with the alien's own qualifications rather than with the position
sought. In other words, we generally do not accept the argument that a given project is so important
that any alien qualified to work on this project must also qualify for a national interest waiver. At
issue is whether this petitioner's contributions in the field are of such unusual significance that the
petitioner merits the special benefit of a national interest waiver, over and above the visa
classification he seeks. By seeking an extra benefit, the petitioner assumes an extra burden of proof.
• • II ••..•.
,
J
A petitioner must demonstrate a past history of achievement with some degree of influence on the
field as a whole. !d. at 219, n. 6.
After obtaining his Ph.D., the petitioner began working in the laboratory of -'t the
University of New Hampshire (UNH tudied mRNA in eUk~04, he
was recruited to join the laboratory 0 at Colorado State University, where he studies
mRNA in mammalian cells.
~sserts that at UNH, the petitioner rose to the level of project leader and published peer­
reviewed articles that have had a major impact on the field concerning how mRNA levels are regulated.
~xplains the significance of this area of research on appeal as follows: .
Since protein expression in cells is controlled by both the amount of mRNA that is
synthesized and how rapidly it is degraded, that is, turned over, information about the
mechanisms used in mRNA turnover may lead to improved methodologies for
controlling the abundance and timing of protein synthesis. As most disease states
involve aberrant protein expression, one obvious remedy to such situations is to alter
processes involved in controlling how long mRNA exist in the cell.
While at UNH, the petitioner optimizMYlation process for and characterized the kinetics of
the enzyme CCR4. According to the petitioner's "results indicated RNA sequence
determinants were likely to be key ea ures a controlled CCR4 activity." In a second paper, the
petitioner reported his results with mouse CAF1, an associate.rotein of CCR4, demonstrating that
CAF1, like CCR4, is a deadenylase involved in mRNA decay. asserts that the results of this
work demonstrate "that the CCR4-NOT protein complex will be VIta or human cells." The petitioner
also demonstrated, however, that CAFI in yeast does not function as a deadenylase as it does in
mammal cells, although it does play a critical role in deadenylation. Finally, the petitioner
demonstrated that mutations in the leucine-rich repeat (LRR) motif completely inhibit CCR4 enzymatic
activity.
While_does not explain the implications of the above work, an assistant
profes~, explains that mRNA degradation and turnover mechanisms have a great impact on
gene regulation and expression. Thus, improved understanding of mRNA degradation "will help to
provide pharmacologists with novel targets for drugs designed to cure diseases that afflict millions of
Americans."
provides similar information, asserting that the petitioner was the first to generate evidence
t at a certain region of the mRNA d directly impact a deadenylase enzyme, "making it
truly a key observation in the field.' attests to the broad impact this work has had on the
field, asserting that the petitioner has been "cited by various authors and review articles."
In support of
evidence that one 0
laim regarding the petitioner's citation record, the petitioner submitted
e petItioner's articles had been cited four times, twice by independent research
groups. The petitioner also submitted four review articles that cite his work. In response to the
director's request for additional evidence, the petitioner submitted evidence that his 2001 article with
several coauthors was cited 26 times and evidence that two of his first-author articles had been
moderately cited.
Also in response to the director's request for additional evidence, the petitioner submitted new letters
from independent researchers in the field. All of the letters assert that the petitioner has advanced our
understanding of the mRNA degradation process. a professor at Harvard Medical
School, asserts that the petitioner's work "is pivota or e a vancement of projects like mine that rely
[on] a more in-depth understanding of how cells function in order to forward projects dealing with
specific human diseases."
On appeal, the petitio letters that go beyond mere praise and general assertions of
skill and influence. a professor at the University of Texas, asserts that the
petitioner'swork "wa gs" and has "clearly in ~al way, the
direction of research in my laboratory and in the field in general." Ilan assistant
professor at the University of Colorado, asserts that the petitioner's research "has set a great foundation
for not only us, but also several other scientific groups in the US."
It does not appear to have been the intent of Congress to grant national interest waivers on the basis of
the overall importance of a given field of research, rather than on the merits of the individual alien.
That being said, the above testimony, and further testimony in the record, establishes that the biological
research community recognizes the significance of this petitioner's research rather than simply the
general area of research. The benefit of retaining this alien's services outweighs the national interest
that is inherent in the alien employment certification process. Therefore, on the basis of the evidence
submitted, the petitioner has established that a waiver of the requirement of an approved alien
employment certification will be in the national interest of the United States.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act,
8 U.S.c. § 1361. The petitioner has sustained that burden. Accordingly, the decision of the director
denying the petition will be withdrawn and the petition will be approved.
ORDER: The appeal is sustained and the petition is approved.